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TMI Blog2019 (6) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... n & Steel structures. The period of dispute is 2005-06 and 2007-2008. During this period, the appellant received several purchase orders from Mobile Service providers such as M/s. Airtel and Vodaphone. As per the terms of these purchase orders, the appellant was required to fabricate and supply mobile towers. Such towers were required to be installed at the destination specified by the buyer. However, the terms of the contract provided for separate consideration for supply of towers as well as for the further works to be carried out at the site i.e. installation of the tower including Erection and Painting. The contracts further specified that if the supplies were to be made within Calcutta, the freight amounts are included in the supply co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the demand for differential duty is not justified for the following reasons: i) He submitted that the goods are fabricated in the appellant's factory and cleared in dismantled form to the site of the client. At the site, the other activities i.e. erection, installation and painting are completed. The resultant product becomes the Microwave Towers which is an immovable property. ii) He submitted that no Central Excise Duty can be levied on immovable property and the appellant has already discharged Central Excise duty on the fabricated components at the factory gate and as such, no further excise duty is payable. He also submitted that there is no justification for including the freight amount in the assessable value in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led and painted at the sites. The contract placed by the buyers was a consolidated contract including supply, transportation and also carrying out other activities at the site. However, separate amounts have been indicated for supply costs as well as for installation, erection and painting. The freight charges are included in the supply cost for sites situated at Kolkata but additional freight amounts will be payable to the assessee in other cases. 8. The Department's view is that as per the terms of the contract, the sale has taken place at the respective sites, after carrying out installation, erection and painting. As such, the adjudicating authority has held that the place of removal of the tower components is not factory gate but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered as the site and not the factory gate. 12. Section 4(3)(c) defines "Place of Removal" as follows : "Place of Removal" includes any other place or premises from where excisable goods are sold after their clearance from the factory." 11. Central Excise Valuation Rules, 2000 provides for Valuation of goods in certain cases. In Rule 5 of said rules, Explanation 2 clearly provides as follows: "For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purposes of determining the value of the excisable goods." in terms of the above Explanation, the cost of transportation from the factory to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in the form it is cleared from the factory, it follows that the installation, erection and painting cost which has been incurred at the site where the goods are taken to form immovable property, cannot be added. It has further been submitted that the appellants have already discharged service tax on the activities of erection, painting and commissioning. 15. To sum up the decision above, we are of the view that the goods are required to be assessed in the form in which they are cleared from the factory at the factory gate. There is no justification for adding erection, commissioning and painting charges. Accordingly, we set aside the demand made by including the erection, installation and painting cost. 16. In cases of those contra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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